Why do some countries adopt constitutional environmental rights while others do not? This article uses qualitative content analysis of interviews conducted in Kathmandu (Nepal) and Colombo (Sri Lanka) to analyze the cases of Nepal, which adopted a constitutional environmental right in the 2007 Interim Constitution, and Sri Lanka, which has not enacted such a right in any of its governing charters. It finds that the presence of a constitutional environmental right in Nepal and the absence of such a right in Sri Lanka can be best explained directly with reference to domestic political conditions and structures, and indirectly in terms of the international normative environment in which the constitution was written. The article outlines a research agenda which focuses on evaluating the impacts of constitutional environmental rights. This research provides important insights into the process of constitutional design in developing states and the translation of international norms in domestic contexts.

The author would like to thank the Southasia Institute of Advanced Studies in Nepal, the Open University of Sri Lanka, and the American Institute of Sri Lankan Studies for providing assistance during field work in Nepal and Sri Lanka. Thanks also to Louis Kotzé, Jim May, Erin Daly, and three TEL anonymous reviewers for their helpful comments on earlier versions of this article; Wayne Sandholtz, Richard Matthew, Diana Kapiszewski, Joe DiMento, and David Feldman for their guidance and intellectual support; and the Center for Global Peace and Conflict Studies at the University of California, Irvine (US) for funding critical portions of this research.

Footnotes

The author would like to thank the Southasia Institute of Advanced Studies in Nepal, the Open University of Sri Lanka, and the American Institute of Sri Lankan Studies for providing assistance during field work in Nepal and Sri Lanka. Thanks also to Louis Kotzé, Jim May, Erin Daly, and three TEL anonymous reviewers for their helpful comments on earlier versions of this article; Wayne Sandholtz, Richard Matthew, Diana Kapiszewski, Joe DiMento, and David Feldman for their guidance and intellectual support; and the Center for Global Peace and Conflict Studies at the University of California, Irvine (US) for funding critical portions of this research.

1Atapattu, S., ‘The Right to a Healthy Life or the Right to Die Polluted? The Emergence of a Human Right to a Healthy Environment under International Law’ (2002) 16Tulane Environmental Law Journal, pp. 65–126; Nickel, J.W., ‘The Human Right to a Safe Environment: Philosophical Perspectives on Its Scope and Justification’ (1993) 18Yale Journal of International Law, pp. 281–295.

18 Each country-year that fell below the median value was coded ‘0’, whereas each country-year with a value above the median was coded ‘1’.

19 In order to maximize the universe of potential cases for this portion of the study, I defined constitutional events as occurrences that involved the passage of a new constitution or the official approval of a draft, interim or proposed constitution during a given year.

20 Nepal adopted a constitutional environmental right in its 2007 Interim Constitution (n. 41 below), whereas Sri Lanka did not enact such a right in its 1978 Constitution (n. 76 below) or its 2000 Draft Constitution (n. 76 below).

21 While results of the statistical analysis indicated that regional influence was not a significant factor in the adoption of a constitutional right, the fact that both Nepal and Sri Lanka are located in the same region (South Asia) introduced a convenient de facto control for geography.

26Elo, S. & Kyngäs, H., ‘The Qualitative Content Analysis Process’ (2008) 62(1) Journal of Advanced Nursing, pp. 107–115. I chose to employ qualitative content analysis as opposed to quantitative content analysis because of the relatively low number of interviews conducted. Therefore, throughout the analysis no attempt was made to quantify the frequency with which certain codes appeared in the interviews, as such an effort would have run afoul of the threshold needed to make viable statistical inferences.

27 This meant that codes and categories would be drawn from the qualitative data itself as opposed to using preconceived codes and categories discussed in relevant literature: see Kondracki, N.L., Wellman, N.S. & Amundson, D.R., ‘Content Analysis: Review of Methods and Their Applications in Nutrition Education’ (2002) 34(4) Journal of Nutrition Education and behavior, pp. 224–230.

28 ‘Open coding’ refers to a process by which quotes relating to the phenomenon in question were selected and notes and headings were typed in the margins of the text in order to ‘describe all aspects of the content’: Elo & Kyngäs, n. 26 above, at p. 109. Interviews were analyzed using ATLAS.ti 7, a qualitative analysis software tool.

45 Although international aid donors possessed ‘considerable leverage over the policies of Nepal’ during the period leading up to the 1990 People’s Movement, the donor community ultimately had limited influence during the drafting of the 1990 Constitution: see Parajulee, R.P., The Democratic Transition in Nepal (Rowman & Littlefield, 2000), p. 224.

46Godavari Marble, n. 44 above.

47 M.C. Mehta has been credited with helping to establish the concept of environmental rights in India through his work as a public interest lawyer: see ‘M.C. Mehta: Environmental Jurisprudence’, M.C. Mehta Environmental Foundation, 2009, available at: http://mcmef.org/environment_jurisprudence.html. In perhaps his most famous case, Mehta successfully argued that Art. 21 of the Indian Constitution, the right to life, should be applied in order to award compensatory damages to individuals harmed by an oleum gas leak: see M.C. Mehta v. Union of India and Others (Oleum Gas Case 3), 1987 AIR 1086, 1987 SCR (1) 819, 1987 SCC (1) 395, JT 1987 (1) 1, 1986 SCALE (2) 1188.

48Godavari Marble, n. 44 above.

49 P.M. Sharma, personal interview.

50 A. Pokharel, personal interview.

51 N. 41 above.

52 D. Khanal, personal interview; P. Sharma, personal interview.

53 Justice Aryal would later become a powerful advocate of environmental rights during a subsequent constitution-drafting process. During a two-day interaction programme co-organized by the International Union for Conservation of Nature and Natural Resources (IUCN) and Janahit Sanrakshan Manch of Pro Public, a public interest law firm in Nepal, Justice Aryal delivered a presentation to members of the Constituent Assembly entitled ‘Clean and Healthy Environmental Rights: Basis for Basic Environmental Rights in New Constitution’: see Thapa, L.B., Mainstreaming of Environmental Rights in New Constitution: Right to Clean and Healthy Environment (IUCN, 2009), p. 15, available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169.

56 E.g., a group of international NGOs in Nepal worked together to draft a letter to the Hon. Laxman Prasad Aryal, head of the ICDC, in which the parties recommended that four kinds of provision related to environmental rights be included in the Interim Constitution: see Care Nepal, the International Centre for Integrated Mountain Development (ICIMOD), the IUCN, the Mountain Institute, Winrock International, and the World Wildlife Fund, ‘Suggestions Given to the Interim Constitution Drafting Committee by INGOs Working in Environment and Biodiversity Conservation, and Sustainable Development’, 13 July 2006, available at: http://www.constitutionnet.org/files/NGO%20recommendations%20to%20the%20IC%20drafting%20Committee.pdf.

57 Khanal, n. 52 above.

58 B. Pokharel, personal interview.

59 A. Pokharel, n. 50 above.

60 Khanal, n. 52 above; G. Pandey, personal interview.

61 B. Pokharel, n. 58 above.

62 Ibid.

63 Khanal, n. 52 above; B. Pokharel, n. 58 above.

64 It was also suggested that the popular awareness of environmental issues was partly as a result of the efforts of civil society organizations: see A. Pokharel, n. 50 above; Khanal, n. 52 above.

65 N.S. Paudel, personal interview.

66 B. Pokharel, n. 58 above.

67 P. Sharma, n. 52 above.

68 P.M. Sharma, n. 49 above.

69Gilmour, D.A., ‘Not Seeing the Trees for the Forest: A Reappraisal of the Deforestation Crisis in Two Hill Districts of Nepal’ (1988) 8(4) Mountain Research and Development, pp. 343–350.

74de Silva, K.M., A History of Sri Lanka (University of California Press, 1981).

75 Rajepakse, n. 73 above.

76 Constitution of the Democratic Socialist Republic of Sri Lanka (1978). A new Sri Lankan Draft Constitution was proposed in 2000 by then President Chandrika Kumaratunga following two drafts prepared in 1997, but it met a controversial defeat in Parliament: D. Bastians, ‘Communal Conundrum and Constitutional Calculations’, Colombo Telegraph, 30 May 2013, available at: http://www.colombotelegraph.com/index.php/communal-conundrum-and-constitutional-calculations.

83 One analyst argues that the changes to the enumeration of fundamental rights were overwrought in that ‘the rights are spelled out too profusely and as a result the restrictions are spelled out equally profusely’: see N.M. Perera, Critical Analysis of the New Constitution of the Sri Lanka Government, Promulgated on 31-8-78 (V.S. Raja, 1979), p. 26. For a comprehensive analysis of the differences between the 1972 and 1978 Constitutions, see Warnapala, W.A. Wiswa, ‘Sri Lanka’s New Constitution’ (1980) 20(9) Asian Survey, pp. 914–930.

84 Coomaraswamy, n. 78 above, at pp. 54–5.

85 Item 3 of the Select Committee’s questionnaire posed the following question: ‘What are the other fundamental rights which you would like to be guaranteed in the revised Constitution?’: see Jayasuriya, D.C., Mechanics of Constitutional Change: The Sri Lankan Style (Asian Pathfinder, 1982), p. 64. At the time of writing, I have been unable to obtain the 1978 Report of the Select Committee on the Revision of the Constitution, which describes the results of the questionnaire.

86 M. Gomez, personal interview. The lack of advocacy efforts relating to environmental rights may be partly as a result of a ‘rights consciousness’ which only began to emerge in the late 1970s: see Coomaraswamy, n. 78 above, at p. 48. This issue is addressed in greater depth in the section below on the political environment.

87Atapattu, S., ‘Sustainable Development, Myth or Reality: A Survey of Sustainable Development under International Law and Sri Lankan Law’ (2001) 14Georgetown International Environmental Law Review, pp. 265–300, at 293.

88 R. Algama, personal interview.

89 I did not include among the attempts listed the 2003 National Environmental Policy, which, under s. 4.3 (‘Outcomes to be Achieved’), emphasizes that the Policy focuses on striving to attain ‘[a] clean and healthy living environment maintained’ and ‘[a] healthy ambient atmospheric environment maintained’, since neither can be considered legally enforceable rights: see Sri Lanka Ministry of Environment & Natural Resources, Caring for the Environment 2003–2007: Path to Sustainable Development (Ministry of Environment and Natural Resources, 2003), pp. 42–3.

90 This draft featured the proposal of a legally enforceable right to ‘an environment adequate for health and well being’: see the National Environmental Act, 1995.

96 Dr Deepika Udagama, a former member of the subcommittee responsible for drafting the portion of the Bill of Rights concerned with socio-economic rights, reports having examined the South African constitution, constitutional jurisprudence of the Indian Supreme Court, and another African constitution in the course of composing the ‘Right to an Adequate Environment’ in s. 14T: D. Udagama, personal communication.

102 Indeed, Justice Kanagasabapathy Sripavan of the Supreme Court of Sri Lanka has acknowledged the importance of the judiciary in safeguarding the environment: ‘We, the judges of various jurisdictions, as custodians of the rule of law, have a vital role to play in protecting the environment. If we fail to protect the physical factors of the surroundings of human beings, including the land, soil, water, atmosphere, climate, sound, tastes and biological factors of animals and plants of every description, nature would hit us back and if nature really starts becoming furious, we would all be wiped off like ants. Let us hope that man becomes awakened very soon and transforms himself’: see K. Sripavan, ‘Judicial Innovations in Environmental Jurisprudence: Sri Lankan Experience,’ in Asian Judges Symposium on Environmental Decision Making, the Rule of Law, and Environmental Justice (presented at the Asian Judges Symposium on Environmental Decision Making, the Rule of Law, and Environmental Justice, Manila (the Philippines), 28–29 July 2010, p. 16, available at: http://www.scribd.com/doc/37087509/Kanagasabapathy-Sripavan-Judicial-Innovations-in-Environmental-Jurisprudence-Sri-Lankan-Experience.

103 Gomez, n. 86 above.

104 Algama, n. 88 above; R. Rajepakse, personal interview. At the same time, at least one observer notes how ‘[t]he Sri Lankan Supreme Court has not exhibited the enthusiasm for such judicial activism and has not adopted the new doctrines evolved by the Indian Court’: see Sharvananda, n. 82 above, at p. vi.

106 Founded in 1981, The Environmental Foundation Ltd (EFL), the ‘first public-interest law firm in Sri Lanka’, was conceived based on the idea that ‘Sri Lanka possessed a well-developed framework of environmental laws that were ineffectively implemented and which could be used as a lever to promote environmental action’: see Guneratne, A., ‘The Cosmopolitanism of Environmental Activists in Sri Lanka’ (2008) 3(1) Nature and Culture, pp. 98–114, at 108.

107 S.C., F.R. App. No. 38/2005, SCM 07.11.2007.

108 However, despite the order from the Supreme Court to enjoin the activities deemed to be a public nuisance, the ‘practice continued unchanged’: see Pinto-Jayawardena, K., Post-War Justice in Sri Lanka: Rule of Law, the Criminal Justice System, and Commissions of Inquiry (International Commission of Jurists, 2010), p. 42.

111 Adopted by the UN Conference on Environment and Development, Rio de Janeiro (Brazil), 3–14 June 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992, available at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.Voigt, C., Sustainable Development as a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law (Brill, 2009), p. 181.

118 Despite the fact that legal commentators have consistently stated that Sri Lanka does not have a constitutional environmental right per se, EFL, the Sri Lankan public interest environmental law firm (n. 106 above), has published a handbook which declares unequivocally that ‘[a] healthy environment is both a right and a responsibility of all Sri Lankans’ in the first sentence of a section entitled, ‘Sri Lankans’ Constitutional Right to a Healthy Environment’: see Your Environmental Rights and Responsibilities: A Handbook for Sri Lanka (EFL, 2006), p. 11. The section mentions the relevant Directive Principles, codes, ordinances, and acts, but nowhere is an actual constitutional right cited.

119 Sri Lanka Constitution, n. 76 above, Art. 12(1): the right to equality provision states: ‘All persons are equal before the law and entitled to equal protection of the law’.

126 At the same time, as one scholar cautions, ‘the case law illustrates that the success or failure of public nuisance as a means of environmental protection and the degree of either is, to a large extent, dependent on judicial sensitivity, attitude and approach in the particular case’: see Puvimanasinghe, S.F., ‘An Analysis of the Environmental Dimension of Public Nuisance, with Particular Reference to the Role of the Judiciary in Sri Lanka and India’ (1997) 9Sri Lanka Journal of International Law, pp. 143–171, at 169. Furthermore, public nuisance prosecutions might not result in the desired environmental outcomes because ‘there is no procedure for the abatement of nuisance nor direct relief to the victims of such a nuisance’: ibid., at p. 145.

127 Rajepakse, n. 104 above.

128 Schukoske, n. 125 above, at p. 168, n. 60.

129 Created in 1980 with the passage of the National Environmental Act (n. 131 below), the Central Environmental Authority, the main environmental agency in Sri Lanka, ‘enforces environmental laws’. Schukoske, n. 125 above, at p. 156.

141 At the time of the ratification of Sri Lanka’s 1978 Constitution, only two countries in the world had constitutions with environmental rights: Yugoslavia and Portugal. In that same year, over three months later Spain enacted a constitution with environmental rights.

The author would like to thank the Southasia Institute of Advanced Studies in Nepal, the Open University of Sri Lanka, and the American Institute of Sri Lankan Studies for providing assistance during field work in Nepal and Sri Lanka. Thanks also to Louis Kotzé, Jim May, Erin Daly, and three TEL anonymous reviewers for their helpful comments on earlier versions of this article; Wayne Sandholtz, Richard Matthew, Diana Kapiszewski, Joe DiMento, and David Feldman for their guidance and intellectual support; and the Center for Global Peace and Conflict Studies at the University of California, Irvine (US) for funding critical portions of this research.